October 17, 2010

David Gregory did a halfway decent job with the interview, but he moved on before he really nailed down what Gibbs was really saying. Let's read the transcript:

MR. GREGORY: [I]f the president wants the law to go away, if he wants the ban to go away, why is he still supporting the law in the courts?

MR. GIBBS: Well, let's be clear, the president believes the law is discriminatory, unjust and, quite frankly, you have men and women who are willing to lay down their life for this country. They--those people ought to be able to serve.

Gibbs doesn't say whether Obama thinks the law is unconstitutional.

The law that was struck down that the president opposes, we, we've got a process. One, the House has passed repeal, and we hope the Senate takes up that repeal quickly. They didn't.

Yes, there's a process for repealing statutes, and there's also a process for challenging statutes in court. If the statute is unconstitutional, the courts should declare it a nullity. If the President think the process is repeal by Congress, then he must think the act is constitutional. Right?

MR. GREGORY: ... Is there faith in the Senate that's misplaced? What does the president do if the Senate doesn't act?

MR. GIBBS: Well, we have a process...

a process...

... in place right now to work with the Pentagon for an orderly and disciplined transition from the law that we have now to an era that "don't ask, don't tell" doesn't exist. And I will say this, David, "don't ask, don't tell" will end under this president. The courts have decided, the legislature has, has--is beginning to decide, and the president is firmly in the place of removing "don't ask, don't tell."

MR. GREGORY: But does he believe it's unconstitutional?

Yes! Gregory asks my question!

MR. GIBBS: You know, David, he thinks it's discriminatory and it's unjust and most of all it harms our national security. It's...

In other words: NO, he does not. Say it!

MR. GREGORY: We know his position, though. But if you keep defending...

MR. GIBBS: ...it's time for the law...

MR. GREGORY: ...it in the courts, how does it end? You can pronounce it dead, but how does it end if you keep backing it in the courts?

MR. GIBBS: Yeah, well, it ends with a vote in Congress.

What?! So, then you mean the court is wrong and that justifies appealing, right?

It's a law, and the most durable solution is to repeal that law.

Durable? Rights enforced in courts are not sufficiently durable? Is that your position? Or is it that there is no right at all? Maybe the President is being pragmatic and political about rights, and the point is that when courts find rights that Congress isn't ready for, those rights don't hold up too well and therefore it's better to pretend those rights don't exist at all. Or maybe that's all rights are in the President's eyes — whatever the majority — as manifested by Congress — is willing to respect as it goes along doing everything else it wants to do. Come on, Gibbs! Tell us whether the President thinks there are any rights here!

That's what the president asked the House to do and they did, that's what the president--I think there's enough votes to do it in the Senate.

Oh, really? What makes you think that?

But, again, we have to get through Republican filibuster.

Which is why you obviously don't have the votes. How do you propose to "get through" the filibuster? Clearly, the judicial case is the easy way to end DADT. Why doesn't the President stop fighting against the rights the court found?

It harms our national security. It's discriminatory, it's time for it to end.

Then stop fighting for it!

And I will say this, David, again, this president will end "don't ask, don't tell," and I think the courts--you're seeing from the courts that their deciding that "don't ask, don't tell," quite frankly, is--has--it's time for it to end, and that time is coming very soon.

Empty, stammering assertions! Exasperating evasions!

David Gregory never forced Gibbs to say whether the President thinks the act is unconstitutional and never forced him to justify fighting for DADT in court. Unlike his predecessor Tim Russert, Gregory lets the guest filibuster until it's time to move on to the next topic. Gregory is sharp, but he's too nice. Too empathetic. He doesn't push on and on with the questions until the obfuscation is painfully embarrassing.

123 comments:

Ann, will you unequivocally say that DADT is unconstitutional and should be overturned by the courts and not left to the Senate and the political decision making process? Or will you continue to play around with this issue to keep your Althouse Hillbillies happy?

It is not as if Ann has to worry about her political viability with the whole nation. Why can't Ann come out and clearly state her position on this issue? She is critical of others for not doing so.

Ann, should we as a nation let this issue be settled through to political process or is there an imperative that it be viewed as a equal protection/constitutional rights issue and settled by the courts?

This is completely off-topic, but I just thought you should know that I went to the trouble of installing Firefox Adblock specifically to expunge that Goddamned seizure-inducing "Vince Flynn American Assassin" add that's been on your sidebar for several days now. Now, I don't see any images from Blogads at all. Ahhh, peace...

I fully disagree. While Gregory is intelligent, he is more supportive of Democrats than Fox News is of Republicans. Did you watch the remainder of the show? Gregory went hard after the Republican Senatorial candidate in the debate, giving nothing but softballs and no follow-ups to the Democrat candidate debating him.

Sheesh, Ann. "Half-decent?" I mean really. Gregory's never met a Republican he liked and a Democrat he wouldn't shill for.

"Sixty Grit" is a good example of reactionary forces that are trying to marginalize Obama and his presidency as among other things " anti-American muslim-loving".

The same happen to John F. Kennedy. It was not until after the midterm elections that he came out forcefully for civil rights.

President Obama has been the biggest supporter of civil rights for gays and lesbians of any president we have had. But that is not enough. He needs to realize that the forces of hate in this country can not be mollified. This is what JFK came to appreciate after Birmingham.

My guess: If DADT is unconstitutional, then the Defense of Marriage Act surely is also. Obama has said he supports DOMA, and maybe he really does. More to the point, he would much rather it weren't a campaign issue in 2012.

Now, "let's be clear." Whenever you hear that, there will be lying, obfuscation or both to follow.

People have a right to be gay, but does that give them the right to be roomies with others in the military? I think that's pushing gay rights too far.

Gay rights aren't a special class of rights possessed only by gays. They only have the rights that everybody else has and those don't include marrying a member of your own sex or forcing others to accept your beliefs about what constitutes normalcy.

It really all comes down to whether being gay is inborn or a type of neurosis or emotional aberration. I think we have conceded that what people do in private between consenting adults is not subject to intrusion, but when you bring it into public you have no protection from being subjected to other peoples' opinions of your so-called orientation. Feel free to speak the name of your love, but don't expect the rest of the world to congratulate you on it, or to validate your "lifestyle." That's part of the rights of The Rest.

I poke around here from time to time. But I am clearly an outlier among the majority that post here. (I realize we are only talking about twenty regular posters here.) But of course you are unwilling to acknowledge that Ann has made this overwhelmingly a forum for like minded people. Obviously, that is her right. But don't pretend otherwise.

If you want Althouse to respond, ignore her. I mean, there's a whole thread about how to attract the opposite sex below.

Meanwhile, I believe Obama has gotten himself caught in a classic Catch-22. There's nothing that would make him happier than soldiers parading around in drag. The Pentagon, on the other hand, would not.

Moral: Gen. Petraeus didn't get his way using charm. No, he laid the "law of war" down and Obama snapped to attention.

They do serve and they do serve with their lives on the line, just not as out in the open homosexuals. That isn't unconstitutional and never was. This whole thing is a farce. Is UCMJ stricter on homosexuality I wonder?

Could it be that the President and others realize that DADT is unconstitutional but practically it would make more sense to wait maybe five years and let the arc of public opinion to continue to get behind ending it? Obviously, much shift in public opinion has already occurred during the last twenty years and there is every reason to believe that as younger people replace older people it will be settled legislatively. Yes, there is a practical political calculation there. Also, some believe that opponents are more likely to accept such a shift if done by majoritarian process.

I disagree with the above strategy but I can understand the rationale. Ann, on the other hand just finds another political football to kick around.

"Sixty Grit" is a good example of reactionary forces that are trying to marginalize Obama and his presidency as among other things " anti-American muslim-loving".

No he isn't. Since when is truth telling all of a sudden reactionary? There is nothing wrong with marginalizing someone, from a public policy issue, that is wrong on the subject. Your characterization of "anti-American muslim-loving" is only indicative of the irrationality of your argument. Stay focused and on topic. Don't try to multi-task.

I don't see why my view of the Constitution is so significant. I'm writing questioning Obama's assertions and actions. I'm keeping politicians honest and exposing lies and distortions and evasions. That's the point of this post. Nothing in this post depends on how I would draw the line if I were a judge and it were my responsibility to make the call.

Under the current law the answer on the constitutionality of the statute depends on the reality and extent of the government's interests. If I were the judge I would do what the judge in the case did to figure that out. Not having done that, I can't put myself in her position. I don't know.

"Could it be that the President and others realize that DADT is unconstitutional but practically it would make more sense to wait maybe five years and let the arc of public opinion to continue to get behind ending it? Obviously, much shift in public opinion has already occurred during the last twenty years and there is every reason to believe that as younger people replace older people it will be settled legislatively. Yes, there is a practical political calculation there. Also, some believe that opponents are more likely to accept such a shift if done by majoritarian process."

Ann, could the President, in all good will, view this as the best course for the country and of the gaining of acceptance of full rights for gays and lesbians?

I'm not privy to the information about the military that the President has, but if I believed, as Gibbs says Obama does, that DADT is harmful to national security and believing as I do that discrimination based on sexual orientation is wrong, I would welcome the court decision and decline to appeal it.

Ann, just to be clear what you are saying, as President you would not appeal a lower court's decision overturning a legislative act based on your view that "discrimination based on sexual orientation is wrong" even though you are unsure if it is unconstitutional.

She already answered your question, dumbass. The key point is whether the government has a legitimate interest in keeping gays out of the military, like it already does with fatties, blind people and athsmatics. Does having gays openly serve in the military undermine combat readiness and national security?

A lot of people would say yes, but Obama is apparently not one of them, at least not according to his PR shill. That being the case, it's hard to understand why he would appeal, unless it's driven by pure politics.

Right, because when the judicial branch rules a law unconstitutional, that's not durable at all.

No wonder even the liberals are abandoning this administration. This is their version of triangulation: "We agree with you, but we'll act against you because we're cowards and don't want to take the political hit." Ridiculous.

if he wants the ban to go away, why is he still supporting the law in the courts?

Because he has a constitutional obligation to defend the law. If he doesn't want to do that, he shouldn't be president. Congress passed the law, President Clinton signed the law. His personal political opinion does not give him the authority to arbitrarily decide which laws he will defend and enforce and those which he will not.

Moreover, if he does not want to defend the law, if he and the plaintiffs are on the same side, then there is no case or controversy and the court lacks jurisdiction, so the case should be dismissed.

Moreover, he has a constitutional obligation to defend the constitutional prerogatives and power of the executive, which includes having plenary power over the military.

Under our system, the president is the commander-in-chief, not some low-level piss-ant member of the judicial branch. It's a political question over which this judge has ZERO competence and ZERO jurisdictional authority.

Does having gays openly serve in the military undermine combat readiness and national security?

I would phrase it as "Would having gays openly serve in the military impair good order and discipline, or harm national security?"

The current question is "Would the good order and discipline of the military be impaired if a district court judge in Riverside California mandated that that gays serving in the military shoult not be subject to discharge should they be outed?" I would say yes, because out gays would constitute an untouchable class.

Denver, you've obviously learned very little about how our host operates and that you persist in trying to obtain answers already given or that will not, for reasons clearly given, indicates you're just being a jerk. You're not making any sense, either.

Rights enforced in court are not, and cannot be durable so long as people believe that the constitution is a living document. It could "live" in such a way as to terminate those rights, just as its "lived" to discover them.

Does anyone here have problems with Ann saying that if she were president she would allow a law be declared unconstitutional by a lower court and not appeal because it would further her personal policy aims even though she is not sure it is actually unconstitutional herself?

Denver seems to want to let Obama get away with not being a MAN about DADT. Ann is right - she is holding politicians and judges accountable for their words & actions. But Denver is a partisan Democrat HACK!

I can't speak for Althouse, but in my opinion DADT is entirely constitutional. Equal protection doesn't apply to the military, which is why women don't get drafted and are excluded from most combat roles.

Repealing DADT would simply put back in place the dishonorable discharge of homosexual soldiers instead of the honorable discharges that most of them are now receiving. There are laws on the books concerning homosexual behavior that requires their dishonorable discharge.

At the present time, any soldier who voluntarily admits to being a homosexual can start a process for an honorable discharge. That will end if DADT is repealed.

Gregory was a Demo shill when he was the Peacock's man in the White House, so anybody surprised that he's doing it now hasn't been paying attention.

PS LE Lee reminds me of what The Blonde used to do to her brothers when they were kids. She'd put her face 2 inches from theirs and say, "I'm not touching you, I'm not touching you". Needless to say, it always started a fight.

You hit on a fellow soldier of the opposite sex, you are severely punished and possibly discharged for "fraternization." You hit on a fellow soldier of your own sex, and that should be just fine? How far do you want to take this? How about the CO and a Pfc of either sex? How about a threesome?

Could somebody with a Military law background explain something to me? As I understood it, DADT was put through by the Clinton administration in order to allow gays to serve in the military. Before DADT, if there was a report of homosexuality against a service member (or if the service found out about it somehow)there would be an investigation and that service member would be prosecuted under UCMJ. When DADT came along, that stopped, allowing gay service members to serve without fear of being hunted down. (They won't ask, and you don't tell. Get it?)

So are they talking about fixing the UCMJ sodomy articles, or what? I feel like nobody really knows what they're talking about with this, but maybe I'm way off.

Denver_Libtard: Not very conservative of you Ann. Also, pretty tricky!

You think Ann is a Conservative?

Damn, the Stupid is strong today.

If you're going to troll, at least research your target. Makes you look like an idiot. And I'm guessing thats why you led off with the Hillbilly insult - you chose to be a Democrat because you thought that would brand you as "smart"....

You are correct. Before, any allegation of homosexual behavior, on or off base, would have to be investigated as an allegation of criminal activity. With DADT, the official policy is to ignore anything but such open and notorious conduct in the military environment that it simply cannot be ignored.

Denver wrote:Ask Ann, she won't answer, but is more than willing to heap scorn on those who do.

Your first comment you refer to other posters as Althouse hillbillies? And yet you also condemn Ann for heaping scorn on people who hold contrary positions? Pot meet kettle.Don't expect civility if you're going to come here as a troll. And what's your beef with hillbillies? Got a problem with a segment of the population? isn't that kind of bigotry? similar to those who hate blacks or gays for example? Are all hillbillies uniformly the same, or are you simply demagoging people as hillbillies because you HATE them.

Well I enjoyed handing Ann her lunch. I can see why she avoids two way conversations. Luckily she has her dozen Hillbillies who are more than happy to prop her up no matter how foolish she is.

But for me the Althouse Borg has become dull. (Obviously it has lost the interest of many others as well given that the post numbers are way down. Those who continue to post here seem to be just the dregs.). So, you are all welcomed to go back to your Althouse groupthink. That is the reason why you are fondly known as the Althouse Hillbillies.

I wonder what kind of sickness it was that got Bob Denver to think appealing to Meade to get the good Professor to answer his question was appropriate?

That said, I think the question was fair, and so was the Althouse response.

Now, I wonder what piece of information she needs that she doesn't think she has, because the major arguments in favor of keeping the ban in place aren't exactly state secrets. I don't think there's any new piece of information or insight out there that hasn't been mentioned here, or in her presence, that is going to be a 'game changer' or 'paradigm-shifter,' either way, short of perhaps some internal studies saying Christians will leave the military in droves and no straights will ever join the Navy again if the ban is lifted.

That said, Dick Cheney was always pretty circumspect around gay rights issues because, well, he loves his daughter. Maybe Ann has her own reasons for not wearing her opinion on her sleeve with this one, too.

I thank Denver and the responses for making this an interesting thread to read. Who ultimately decides what is constitutional is the Supreme Court, which can makes those unpopular decisions. Given the scorn heaped on Obama for almost any decision, I understand his tactics of trying to get the Senate to pass the ban, which still could make its way through the courts.

As a 25 year military guy I never had a problem with gays as long as they didnt violate the sodomy part of the UCMJ--I have also court martialed straight soldiers who fraternized with members of the opposite sex--the UCMJ is pretty clear on that issuue and we always had article 131 as the elastic clause much like the judiciary treats the commerce clause)

As a proud Florida cracker, I do object to being excluded from the all too restrictive "hillbillies" label. I hate being a member of an excluded class.

And what's [Denver's] beef with hillbillies? Got a problem with a segment of the population? isn't that kind of bigotry? similar to those who hate blacks or gays for example? Are all hillbillies uniformly the same, or are you simply demagoging people as hillbillies because you HATE them.

Denver means to say "rednecks", but he has enough awareness to realize that ethnic slurs would damage his "enlightened tolerant" cred.

Because the larger issue at stake is freedom of action in determining military policy. The military operates by a different set of rules, and everyone with sense understands this--including most judges. The President understands this, but doesn't want to admit it publicly, hence the evasions.

Another reason why Gibbs--and by extension, the President--won't answer the question:

Because then he'd be making an argument often associated with Justice Scalia: that it's a bad law is irrelevant; the issue is whether the judiciary is the way to overturn it.

Conservatives often make the argument that courts are right to uphold a bad law, because bad laws can be constitutional; and if they are, they should be upheld. Liberals often label this "mean," and simply want bad laws eliminated, by any means necessary.

FLS--LOL! If Florida goes then there are some 40 million people who live in coastal areas that are equally endangered!

But as you probably suspect, melting ice caps and global warning are just not issues I am concerned about--especially because I live in Memphis (but lets agree not to drag a global warming OT thread into this one?)

AllenS and others make a very good point here -- if DADT is done away with, one way or another, that will leave the military more restrictive to homosexuals than it is now.

I'm not sure how DADT harms our military preparedness. Maybe one of our liberal commenters can explain that one.

Maybe the idea is this: The military isn't able to attract as many potential candidates, because...there are so many people out there, and many of them natural-born marines and soldiers, who would love to serve in the military, but only if they can openly display their homosexuality.

It seems unlikely that there are a whole lot of people out there who would fit into that category. I'm sure there are homosexuals in the military that have served with great distinction; but what percentage of the military are they? 2%?

And those 2% were apparently OK with DADT. How many more outstanding candidates are we really losing with DADT? Maybe 0.5% of our forces?

Is this tiny increase in the pool of potential talent really worth the added expense in having to house these people separate from everyone else? I'd personally prefer that they take that money (that would be used for outed gay housing) and spend it on the F35 joint strike fighter, and save a few military lives.

Arizona is making immigration law, trespassing on the exclusive federal domain.

Sanctuary cities are declining to volunteer information to the federal government, as is their right. The US Supreme Court has consistently held that the federal goverment cannot force state and local governments to enforce federal law. As Justice Scalia wrote in Printz v. United States (Local Law Enforcement refused to run background checks on prospective gun purchasers required by Brady Bill)

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed.

The challenges to DADT constitutionality seem to rely on 14th amendment equal protection provisions. Since sexual orientation is not a protected class in the 14th (race, religion, national origin...), discrimination on that basis only has to be imposed on a rational basis, which is normally a low hurdle. With respect to military service, those imposing DADT should merely have to state that the basis is preserving the effectiveness of an organization that lives and operates in an environment that is exceptional.

I would hold that if the executive branch determines that having gays openly serve would adversely impact the military, that is sufficient basis. It is not appropriate for the judicial branch to override that determination and dictate to the executive. The unspoken truth is that the vast majority of those serving do not want to live in near-intimate circumstances with homosexuals, anecdotes notwithstanding. Their preference may not be rational, but maintaining their morale certainly is. I would further note that the vast majority of those who oppose DADT have not served, and their uninformed sensibilities do not trump reality.

I wish I were smart enough to be a lawyer. Then I could read the constitution and find that fabled Right To Be In The Armed Services And To Talk About Whom You Diddle.

As a matter of fact I can find no right to serve in the armed forces. I do not know enough people of the age to be PFCs and Corporals to know how the kids who will enlist feel about this issue. When I served, the vast majority of openly gay folks would have been a real problem. There were the odd cases of gay Noncoms preying on teenaged enlistees. That was bad, worse were the physical attacks on people presumed to be teh ghey. Would this happen now? I dunno, neither do all you law types, few of whom have ever slept with another grunt in the rain. I have.

What I would really like is that if one has never had to strip, outside, and check each other for leeches, to shut up about the Service. It's a different world and if you aren't in it, and haven't been in it, shut up. You have no more earned the right to change it than I have earned the right to plead a case to the Supreme Court.

IANAL and IANALP, and I have not carefully reviewed the ruling of the judge under appeal, but I do not believe DADT is unconstitutional based upon the following:

- Conress is specifically granted the authority to establish the rules for the armed forces

- These rules already include specific limitations on clearly enumerated First Amendment rights, and noone seems to question their constitutionality

- It logically follows that, should it choose, Congress can, in the rules governing the armed forces, stipulate that one may not engage in homosexual activity, regardless if such action is normally constitutionally protected.

'monst hillbillies, it is common when you go to someone elses house that you act polite. Certainly that level of manners is not shown by the leftist trolls visiting here.

DADT was a Democrat law designed to give a Democrat President cover for what he could have done with an executive order. Yes, it is bad law, but that doesn't mean unconstitutional law.

My notion is that the executive is the proper place for such regulations. That permits the executive to make command decisions based on his advice and understanding of the needs of the country and its defense. If there was a crucial national shortage of homosexual soldiers he could offer a reenlistment bonus, if needed.

Congress, with the President, has the power over the Uniform Code Of Military Justice and the rules by which the military must follow. They do this by passing laws.

If we look at Truman's desegregation of the armed forces, the first thing he did was set up a military committee to study the matter and set up a plan for its implementation. Obama has theoretically done this. (What they have accomplished is unknown.)

Truman followed it with an Executive Order requiring that it take place. The Executive Order notwithstanding, the military still resisted and various political actions back and forth took place for several years until everyone got over themselves. Segregation appeared to be a military 'policy' as opposed to a military 'law' and so an Executive Order could remove it - although many people agitated for desegregation to be added to the Korean War draft law.

It is at this point that Clinton has made it legally much harder for Obama. DADT was written into the UCMJ by statute and that statute will legally override any Executive Order Obama might issue on the topic. That permits the military to legally ignore the Executive Order.

To really end the disallowance of out, known homosexuals in the military legally will require an actual law to be passed. It will have to correct the Uniform Code of Military Justice in several locations. It will have to maintain and rewrite the sections on fraternization and 'conduct unbecoming' because bad behavior is still bad behavior and a detriment to morale. And it will need to do something about requirements for homosexuals in military intelligence positions, which is even more delicate - to prevent blackmail one would need to require them to be 'out and proud' but that puts a requirement on them and might not be legal, etc.

But all those are legal problems, and Obama could have solved them legally by having an appropriate law drafted and put through Congress.

The real problem is political. To integrate the armed forces in this fashion will require political leadership. It is this which Obama is choosing not to exercise.

Let me begin by stating that I clear the bar, having served, placed by those who opine that if you haven't served then shut up and color.

I'll disagree with the assertion that a majority of active military, reservists, and National Guardsmen (all covered under the UCMJ) strenuously object to the mere presence of homosexually oriented members within the ranks. A poll of this climate is in essence the basis of the initial 'review' now underway.

I'll note to all those claiming that the wheel needs to be completely re-invented with regards to standards of interpersonal conduct amongst servicemembers that such notion is over wrought - for the simple reason that an already robust framework exists for such conduct - regardless of sex or sexual oreintation. Unwanted advances are unwanted advances.

I give the current administration very low marks on this subject - their actions to this point remind me more of people ranting on the internet (i.e. basically ineffectual) than that of a bunch of folks being led by a 'Constitutional Scholar' taking leasdership on an issue they campaigned specifically about. Gibbs weaseling simply re-enforces that view.

Further, the Democratic leaders of the Senate (Scary Harry, in particular) get no sympathy for the lament that the Repubs filibustered their valiant efforts, considering they wedded the issue to a poison pill they knew the R's wouldn't go for at all.

I myself tend towards the view that DADT is bad policy. And yes, I can see the 1A argument here - it requires people to supress their thoughts, and hide them away for fear of retaliation. And that retaliation, and the condoning of intolerance and bigotry, which is the crux of the issue.

addendum - it's really nice to encounter a discussion of the topic that's relatively free of partisan statements completely immersed in willful ignorance of the specific roles and duties of our Federal Republic, with its system of checks and balances. The only statistic I'm going to toss out is the anecdotal observation that about 90% of the discussions I've seen on this topic confuse or disregard these roles - which, if I were to rank such idiotic strawmen it would be a tough call between Skippy being able to abolish this policy by executive directive, or faux indignation at the concept of civilian control of the military (as in 'how dare they tell the military what to do).

Homosexuals do serve in our military, and have over time. I believe many did back when I was drafted and served in the Army four decades ago, during Viet-Nam. But I didn’t ask, and they didn’t tell. Neither did the military. We all had jobs to do in a war zone. And rest assured, the last thing a soldier (especially one who is in a war zone) wants to be thinking about is the openly advocated sexual orientation of the guy in the next bunk!

You are never more alive and more focused than when you are in a dangerous zone. Survival instinct makes one aware -- all the time -- of circumstances around you, and of those working around and with you . . . you know or believe you know who you can rely on, and who may not be so reliable. Unit cohesion and success depend on a high level of ongoing trust. Sexual orientation is NOT a part of the mix!

Now, I am certain many homosexuals serve in the military today, while being mindful of the legal admonition not to openly say so in a public way, or to act in a manner that would, under the circumstances, unmistakably expose or reveal one's sexual orientation.

I can even imagine that there are many homosexual troops who are perfectly happy to keep it the way it is. There are probably more that the opponents of DADT would like to admit!

What DADT attempted to proscribe was not homosexuality, but rather openly seeking any form of indulgence on the part of others over one's sexual orientation. And in turn, the military agreed to not actively probe for evidence of such orientation on the part of active duty troops -- i.e., credible and articulable evidence of homosexual behavior.

It was a legislated social compact, one that attempted to sidestep the question of constitutionality in a free speech or an equal protection context, largely because lawmakers understood that forcing the issue might (at worst) risk a form of reckless endangerment with regard to our national security.

If homosexual soldiers could openly draw public attention to, or seek recognition for their sexual orientation, without consequence, Legislators believed that could open up the door to a series of social ills potentially affecting, or even seriously undermining military morale and unit cohesion.

Finally, constitutionality in the context of military matters is different than in other contexts.

There is simply no specific textual commitment of constitutional authority over military matters given to the judicial branch, including jurisdiction. Having Article III courts ruling on such matters is, in my opinion, unwise in the extreme . . . and constitutionally questionable.

Perhaps that is part of the reason that President Obama does not wish to answer the question about the constitutionality of DADT. He may simply feel that, as the Commander in Chief, the courts have no real legitimate role to play in this issue.

But he would be afraid to say that publicly because it would undermine one of the fundamentals of the progressive theory of governance, i.e., the least democratic branch of our government should be setting the broad parameters of our public policy.

But I do not want to give him too much credit in that regard because he has never been exposed to, nor demonstrated any knowledge whatsoever of what it takes to appropriately handle military matters. Nor did the draft-dodger who signed DADT, and who wanted a far different result when he became President.

It used to be you had to be in the Combat Arms branches to have street cred, but I can tell you from personal experience that today that really doesn't cut it. I was in an Intel unit and we were deployed side by side with the infantry usually with less support. Same conditions, same stresses. That's why they have a Combat Action Badge now.

If the requirement is close long term proximity and combat stress, then you really have to expand your horizons.

No. You were deployed along-side them, not with them. Its not the same thing. You relied on them to have your back, not the other way around. Sorry, I have a ton of respect for the G-2/S-2, but its not the same.

For cases where someone was a clear and present danger to morale or unit cohesion, they may be allowed to serve temporarily in rear echelon units in the US while replacements are arranged, but never in combat roles, nor positions of responsibility.

When detected in theatre, they are removed immediately, as a matter of urgency and military necessity.

There was uncontradicted testimony to this effect.

It was asserted - quite rightly - that the US Military only had to have a rational basis for its actions. Absent any rational basis, constitutional rights cannot be arbitrarily ignored - but the bar is set pretty low, and mere assertion by the military that something is so would be enough absent rebutting evidence.

So was there rebutting evidence?

There was uncontradicted testimony that rather than Gays being immediately removed from combat units, their discharge was delayed until they were back home. That discharge would be delayed specifically so Gays could be sent overseas in vital roles. That the times that Gays were discharged was mainly when they were in non-mission-critical roles, and that when they were discharged when in mission-critical roles, effectiveness dropped, rather than increased as would be expected if they were a problem.

None of this testimony was contested. Much was stipulated.

The military itself showed by its actions that military necessity and effectiveness were being compromised by the discharge of Gays. The assertion - one contained in Congress's determination embedded in the DADT law - that their presence was a threat to effectiveness was contradicted by the facts. There was thus no rational basis for DADT. Nor for discharging gays from the military due to Sodomy provisions of the UCMJ. The rationale for keeping those in effect despite them having been deemed unconstitutional in a civilian context was again military necessity, to not enforce them would reduce military effectiveness. The military's actions showed otherwise, that this too was pretextual.

Had there not been a long history of "stop-loss" programs in the USA, dating back to WW II, and continuing under the Bush administration, to prevent essential personnel from being discharged for being gay, and had the military not effectively instituted its own out of military necessity (as the Obama administration refused to issue such an order), then mere assertion would have continued to be adequate. But in the face of overwhelming evidence to the contrary, and with no submitted evidence in favour, the Judge had no choice other than to rule as she did.

It may of course be that the Obama DOJ deliberately "took a dive" on this one. However the chaos and panic that has resulted would seem to argue against that, they really did have nothing to back their claims up.